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In the Matter of the Federal Mediation and Conciliation Service

Arbitration Between

INTERNATIONAL ORGANIZATION OF

MASTERS, MATES & PILOTS

Grievant,

and

STATE OF WASHINGTON, DEPARTMENT OF

TRANSPORTATION, FERRIES DIVISION

Respondent.

FMCS 120514-55638-6

BEFORE: Lawrence E. Little

Arbitrator

7790 NW Wildcat Lake Road

Bremerton, WA 98312

REPRESENTING Rhonda J. Fenrich

THE UNION: Attorney at Law

Fenrich & Gallagher, PC 245 West 5th Avenue

Eugene, Oregon 97401-2516

REPRESENTING Don Anderson

THE EMPLOYER: Assistant Attorney General

Attorney General of Washington

Labor & Personnel Division

7141 Cleanwater Drive SW

PO Box 40145

Olympia, WA 98504-0145

ARBITRATION DECISION

AND AWARD

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HEARING HELD: January 25, 2013

Seattle, WA

Introduction

The short hearing was transcribed and a transcript (T)

was timely received by this arbitrator. The parties having met

and conferred for a substantial period of time immediately prior

to beginning the hearing, on their initiative asked and

stipulated to nsubmit this case to the arbitrator for his

consideration upon the exchange of affidavits and Memorandum of

Law, similar to a Summary Judgment Motion" (T-4) The parties

further agreed to, exchanged and made available to the

arbitrator at the hearing, all proposed exhibits. The exhibits

were often identical yet numbered differently by the parties,

and when identical will hereafter be referred to by either or

both identifiers, for example State 1 (S-1) or Union 2 (U-2).

The parties also agreed to a simultaneous exchange of witness

declarations (which was done on April 18, 2013), and then a

later simultaneous submission of a Memorandum of Law (which was

also timely done, and the record closed on May 10, 2013)

Issue

The parties stipulated (T-5; Union Brief (UB)-2; State

Brief (SB)-3)(with minor language differences) that the issue

is:

Whether the State violated Rules 8.01 and 9.01 with regards

to Relief Deck Officers overtime entitlements when on a single-

day dispatch? If so, what is the appropriate remedy?

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Relevant Contract Provisions

U-2/S-l

1.02 Intent of the Parties

The terms and provisions herein contained constitute an

entire contract which is fully integrated with respect to each

of its terms and provisions.

2.01.28 Straight Watch

The term "Straight Watch" is any watch other than a touring

watch as defined in Subsection 2.01.31 of this Agreement.

2.01.31 Touring Watch

The term "Touring Watch" is a watch in which the Deck

Officers assigned thereto are on duty for two (2) work shifts

not to exceed sixteen (16) hours within one (1) twenty-four (24)

hour tour.

8.1 Establishment of Work Periods

1. The principle of the eight (8) hour day is hereby

established. For all practical purposes, eight (8) consecutive

hours shall constitute one (1) work day. Forty (40) hours shall

constitute a work week, and eighty (80) hours shall constitute a

two (2) week work schedule. The following work schedule shall be

observed:....

2.....B. If schedules include offsetting eight (8) hour

shifts, the WSF agrees to pay, no less than eight hours pay for

working the short shift for all employees on single day

dispatch.

3....C.iv.... All Deck Officers working regular assignments

shall receive in wages not less than eighty (80) times the base

straight-time rate for each two (2) week work period; provided,

however, that such Deck Officers are available for work at the

time scheduled by the Employer. Travel time, if any, shall be

included within the scheduled work day, to the extent possible,

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when Deck Officers are assigned to move vessels to a different

terminal or to a repair yard, and such vessel moves do not

occupy the entire work day.

9.01 Extended Work Days

All overtime worked by an employee will be paid at one and

one half (1 ) times the employee 's straight time rate of pay.

Actual time will be reported but overtime will be paid in the

following six (6) minute increments based on the following

increments, six [6] minutes, twelve [12] minutes, eighteen [18]

minutes, twenty-four [24] minutes, thirty-six [36] minutes, and

forty-eight [48] minutes) for the first hour. For time worked in

excess of one (1) hour, overtime will be paid at one and one

half (1 ) the employee 's straight time rate of pay, in one (1)

hour increments.

If the extended assignment exceeds five (5) hours, pay for

such work shall be at the overtime rate with a minimum of eight

(8) hours. Such extended work shifts shall not be scheduled on a daily or regular basis. The Employer shall not abuse the use of

overtime to avoid scheduling another crew.

Year round employees, excluding Relief employees, who are

called in to work on a scheduled day off and have a minimum of

eighty (80) non-overtime compensated hours in the work period

will be compensated at the overtime rate of pay. In addition,

they will receive three (3) hours of pay at their straight time

rate of pay regardless of the length of the overtime shift or

the hours actually worked.

Relief employees that work an additional day beyond a

defined eighty (80) hour work period and have a minimum of

eighty (80) non-overtime compensated hours in a work period will

be compensated at their overtime rate of pay. In addition, they

will receive three (3) hours of pay at their straight time rate

of pay regardless of the length of the overtime shift or the

hours actually worked. On-call employees with less than 80 hours

compensated time will not receive the three (3) additional hours

pay (see examples below).

Relief Employees

Relief Employees called to work and have between seventy-

six (76) and seventy-nine (79) hours:

• X hours of straight time to eighty (80) hours

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• X hours of overtime above eighty (80) hours

• Three (3) hours call back at straight time

EXAMPLE: Employee has worked seventy-six (76) hours in a work

period. Employee is called into work on their scheduled "free

day" for eight (8) hours of work. The employee receives four (4)

hours straight pay and four (4) hours pay at time and a half (1

)of their straight time rate. Employee receives three (3) hours

call back at their straight time rate.

9.1.1 An employee may opt to accrue compensatory time off in

lieu of overtime pay for any shift, or equivalent,

which they would otherwise be guaranteed a full shift

of overtime pay, as described in Rule 9. Employees may

elect comp time, or overtime, or a combination thereof

equivalent to the overtime rate of pay.

9.1.2 Relief Deck Officers shall be paid straight time for

all scheduled hours worked until they exceed in excess

of eighty (80) hours in a work period or ten (10)

shifts in a work period. All other (scheduled) work

hours not in the printed Deck Schedule (eg. boat

moves, sea trials, etc.) shall be considered an eight

(8) hour shift and shall result in overtime based of

the eight (8) hour day and Rule 9.

9.1.3 A Deck Officer who is entitled to earn overtime pay

under provisions in this agreement may opt to accrue

compensatory time in lieu of receiving the overtime on

an hour for hour basis for overtime hours worked in

increments of two (2) hours or more.

22.3 D. Authority of the Arbitrator

1. The arbitrator will:

a. Have no authority to rule contrary to, add to,

subtract from, or modify any of the provisions of this

Agreement;

b. Be limited in his or her decision to the

grievance issue(s) set forth in the original written grievance

unless the parties agree to modify it;

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3. The decision of the arbitrator will be final and binding

upon the Union, the Employer and the grievant(s).

Background

As noted by the State of Washington, Department of

Transportation, Ferries Division (hereinafter Employer) in their

Respondent 's Memorandum of Law (SB), the Washington State

Ferries (WSF) is the largest ferry system in the United States

and the third largest in the world, carrying more than 24

million passengers each year. The WSF has about 2,000 employees,

23 vessels and 20 ferry terminals, and employs about 250 members

of the Union grieving in this matter, the International

Organization of Masters, Mates & Pilots (MM&P, hereinafter

Union), serving as "Masters, Mates, Chief Mates, Second Mates,

Extra Relief Mates and Temporary Mates," under the parties

Collective Bargaining Agreement (CBA)(S-1/U-2). The WSF also

employs about "900 to 980" members of the Inland Boatman 's Union

(IBU) under a separate CBA (U-9), mostly serving as deckhands

and terminal employees.

This grievance was filed as a "Class Action all Relief Deck

Officers," and reads as follows:

"Relief Deck Officers have worked a single day 7 hour

shift and have turned in for 8 hours of pay per rule 8.01 #2 and

have included that 8 hours of pay towards their 80 Straight Time

commitment as per Rule 9.01.02. WSF auditors are redlining OT

when a relief goes over 80 hours using that single 8 hour day as

only 7 hours which is not what was agreed to in negotiations

concerning "Elimination of Touring Watches" which was later

captured in the current CBA under Rule 8.01."

The remedy sought is:

"Stop red lining of pay orders and make whole all RDO for

nonpayment of earned OT. Reliefs that work over 80 hours and the

short shift of 7 hours that is paid as 8 hours should be

included in the total for calculating the over 80 hours OT

payment."

The parties agree that after the United States Coast Guard

ruled that "Touring Watches" had to be eliminated, in the

Union 's words, "....the parties entered into bargaining to

establish schedules for those former Touring Watches," (UB-5) and

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in the Employer 's words, "...WSF and the unions began meeting in

late 2008 in an effort to devise new shifts that limited impacts

on service, while being agreeable to employees." (SB-3-4)

The parties met and ultimately agreed to a Memorandum of

Understanding (MOU) (U-4) which noted that it is "....addressing

the effects of the elimination of the touring watches." That

MOU provided in part:

"The WSF and the Unions have worked diligently to include

alternative shift lengths in the Fall Working Schedules and

toward the reduction or elimination of offsetting eight-hour

shifts. If schedules include offsetting eight-hour shifts, the

WSF agrees to pay, no less than eight hours pay for working the

short shift for all employees on a single day dispatch. IBU

Relief and on-call employees shall be paid overtime on the long

shift when working single day dispatch."

Position of the Parties

Union

The Union argues that both parties admit that in

negotiations the Union "...clearly conveyed that extension of the

historic pay practices engaged by IBU members and that the seven

hour day was a make or break issue for the Union," (UB-8) in

effect extending the existing IBU provision to the Union for

seven-hour shifts providing for eight hours of pay, and counting

all eight hours for the threshold for overtime. They further

raise several arguments supporting their grievance: first, the

language in the CBA and the MOU; second, the Employer' s past

practice in counting all "compensable time" towards the 80 hours

overtime; third, impacts on other contractual provisions if the

Employer 's interpretation controls; and fourth, their memory

that the parties discussed during negotiations that the Employer

would '...consider all hours in pay status when determining

whether overtime is owed. ' (UB-13)

Employer

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The Employer first argues that the Union bears the burden

of proof. Then they argue that CBA Rule 8.01 is not ambiguous

and provides that a relief employee is to be pa i d "...for eight

hours when he works a single-day seven-hour shift. It does not

state, as the MM&P asserts, that the employee is also to be

credited for working eight hours when calculating his overtime

entitlement. " (SB-9) Furthermore, they argue that nowhere in the

CBA language in Rule 8.01 does it relate, "....in any way to the

manner in which overtime for work over 80 hours in a pay period

shall be calculated for relief employees" (SB-7). In addition

they argue that the language in Rule 9.01 supports the

Employer' s argument that "....employees are to be paid overtime

based on the hours actually worked" (SB-8), and importantly it

doesn 't state that they are to be credited for eight hours for

overtime entitlement. They argue that the example in Rule 9.01

is of "particular importance." (SB-9) They also argue that if

employees got credit for working eight hours they would, "....in

effect, be paid twice for the 'eighth hour 'of each short

shift," (SB-9) and that the Union has misplaced reliance on the

IBU CBA terms, especially as to the definition of Licensed Deck

Officer and the different IBU contract provision for Relief

Employee overtime pay.

Affidavits and Declarations

As the parties proposed and stipulated to submitting this

grievance arbitration to the arbitrator without testimony, and

solely on exhibits, briefs and declarations/affidavits, an

examination of those declarations and affidavits is particularly

important.

The Employer submitted two declarations, one from their

Director of Marine Operations and the other from their prior

counsel. The Union submitted three affidavits, one from their

Regional Representative and one from the IBU's Regional

Director, and one from a Relief Mate.

As noted in the affidavit of Tim Saffle, a Union Regional

Representative, former Master and former Port Captain, he was

involved in the 2009-2010 negotiations at the time the Touring

Watches were ended. He noted that those negotiations were in a

coalition setting, with both the Union and the IBU negotiating

with the Employer. He states that a key issue for the Union was

that they wanted comparable language for the Union to the

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preexisting IBU language, which IBU language "....provided for

seven hour shifts to be credited as an eight hour day and nine

hour shifts to be credited as an eight hour day with one hour of

overtime for their relief and on-call members" (Saffle

Affidavit, p. 2) in order to cut down on "....confusion and errors

and simplify timesheet auditing for the State." (Saffle-2)

That affidavit argues that "compensable time" includes

"guaranteed time," and that the Employer is only "...choosing to

disallow the use of Guaranteed Time on the 7-hour day; in all

other instances of Guaranteed Time the State is using the

calculation towards the 80 hour threshold for Overtime."

(Saffle-3) He also argues that as to the seven hour day the

Employer was not counting the full eight hours in other

contexts, such as towards the "...threshold for dispatching these

relief employee in accordance with Addendum K of the parties '

contract." (Saffle-4)

He noted that, "The State has reinterpreted the contract so

that this one hour isn't even considered compensable time for

the overtime threshold, even though the agreement was that it

was to be treated as an eight hour day. MMP sees this as a

violation as the State is treating this day as a seven hour day,

not as the eight hour day that it is always been treated as

under the IBU agreement." (Saffle-5)

Saffle also mentions the "Quick Note" that the WSF 's Steve

Rodgers sent and that, "At the time, IBU members were still

receiving...a guaranteed eight hours of pay for the seven hour

day, in accordance with our MOU agreement." (Saffle-4) and that

Rodgers had noted that the State needed to track the

"...additional hour of pay on the seven hour dispatched

assignments for cost analysis purposes." (Saffle-3)

He noted that he had,

"...prepared Exhibit U-15 to provide examples to better

illustrate the implications of the State' s

misinterpretation of the contract. Example 1 shows an

employee who works six ten hour shifts on one boat; works

one eight hour shift; and then works one seven hour shift

which is compensated as eight hours for a total 76 hours

meeting his threshold for work accomplished in the work

period in accordance with Addendum K. He would then put in

for four hours of guarantee time to be compensated for his

80 hours of guarantee pay. The state is saying on this

example that the employee should have put in for seven

hours and one hour of guarantee time, and that his actual

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total of hours would have been 75 not 76 hours. This

interpretation by the state is where they are double

dipping ....." (Saffle-5)

In his conclusion he notes:

"These are all illustrations of what I would say are WSF 's

inconsistencies in the application of the contract and in

pay roll auditing. It shows where they have chosen to

interpret the MOU to their favor in some cases, but they

are not consistent with their practices of paying fairly

when not in their favor." (Saffle-7)

In the affidavit of Dennis Conklin, the IBU Regional

Director, he states that, "During the 2009-2010 negotiations the

State wanted an agreement which would treat MMP and IBU members

similarly after the elimination of the touring watches."

(Conklin-2) He noted that, "The State expressed the need for

flexibility in these negotiations and the unions provided that

one quid pro quo for that flexibility would be the continuation

for IBU, and the application of that agreement to MMP, that

shifts of less than eight hours would be treated as eight hours

of work and compensated as such." (Conklin-3)

He further stated that as the IBU representative he:

"....specifically clarified during the negotiations and

mediation with the State over the end of the touring

watches that the State would consider all hours in pay

status when determining whether overtime is owed. The State

never took the position that this time would be considered

as anything other than compensable time and time work for

the purposes of reaching the 80 hour overtime threshold."

(Conklin-4)

In the third affidavit offered by the Union, Greg Faust, a

Relief Mate notes that he participated in negotiations and

mediation as a delegate representative of MMP. He noted that,

"At no time in the negotiations or mediation discussions did

either party identify the additional hour for an employee

dispatched to a seven hour day as 'guarantee time.' (Faust-3)

He further noted that:

"After the parties entered into the Memorandum of

Understanding I was paid in accordance with the unions '

understanding of the agreement and consistent with the

manner asserted by MMP in this grievance. I worked relief

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on a seven hour day. I was paid eight hours for that day.

The eight hours were then added to my other time worked in

the pay period and I was paid over time based upon the

inclusion of that additional hour as time worked." (Faust-

3)

Continuing to refer to U-13, Faust notes as to his pay

submissions for October 1-15, 2012:

"This page shows I received and worked a seven hour shift

on October 14, 2012. Per the MOU and my prior practice I

put in for 8 hours of work and pay for that date. Page 3

shows the auditor change my paperwork from 8 hours straight

time pay to 7 hours of straight time pay and the addition

of one hour of guaranteed time. During that work cycle I

worked 77 hours, including the additional hour, but the

state treated this pay period as if I worked 7 6 and

provided me with four hours of guarantee time. This is not

consistent with the parties ' agreement which is that I

should have received 77 hours of pay for work and three

hours of guaranteed time."(Faust-4)

In the first affidavit offered by the Employer, Steven

Rodgers, their Director of Marine Operations, noted that he

learned:

"In early 2010....that relief and on-call deck department

personnel and relief deck officers were not properly

filling out their pay orders. In response, I issued a Quick

Notice to clarify the procedures for documenting their

time. I reminded them that....MM&P relief employees who are

dispatched to a single seven-hour watch are to document

their time as seven hours of straight time and one hour of

guarantee pay ....."(Rodgers-4-5)

In the declaration of David Slown, offered by the Employer,

he notes that he was counsel to the WSF from 1998 to 2010 and

that after the elimination of the touring watches, "Due to the

popularity of touring watches, both MM&P and IBU resisted their

elimination fiercely, from the start." (Slown-2) He further

stated that,

"....we were aware that in the IBU, reliefs and on calls on

single day dispatch were paid eight hours, seven straight

time and one guaranteed time, when they worked the seven-

hour end of a "flexed" shift, and eight hours of straight

time and one hour of overtime when they worked the nine

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hour end. Management did not want to extend this practice

to MM&P ....." (Slown-4)

He further stated that,

"At no time during any mediation session was there any

discussion of the effect of paying eight hours of pay for a

seven-hour shift upon an employee 's entitlement to overtime

based upon exceeding eighty hours of work in a pay period.

The subject never came up. The assumption of the management

team, had the subject being discussed, would most certainly

have been that on a seven-hour dispatch, the employee would

be paid seven hours straight time and one hour of

guaranteed time. I say this because guaranteed time was the

type pay used whenever any WSF employee was paid for time

not actually worked. This was not an uncommon occurrence,

as all relief employees in IBU and MM&P were guaranteed 80

hours pay per pay period, even if 80 hours of work were not

offered to them." (Slown-5)

Discussion

Burden of Proof

The Employer argues that the Union must meet a burden of a

preponderance of the evidence, citing the arbitration award of

City of Mattoon, 128 LA 1753 (Szutzer, 2011). As they note, in

that award the union in such an alleged contractual violation

arbitration bears the initial burden of presenting evidence

"beyond the mere assertion of a position."

A major labor arbitration treatise notes that, "In general,

the party asserting the claim has the burden of proving it."

Elkouri & Elkouri, "How Arbitration Works," (7lli Ed.

(2012)(hereafter Elkouri), p. 8-102. Furthermore, that treatise

cites an award where it is noted that, "...the parties are aware

that the initial burden of proof lies with the Union. This is to

say that the aggrieved must come forward and show that its

position is supported by a preponderance of the evidence."

Hercules Galion Prods., 52 LA 1026, 1027 (Mcintosh, 1969).

Many arbitrators in contract interpretation cases require

that the union carry the burden of proof by a "preponderance of

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the evidence." Dept. of Veterans Affairs/AFGE Local 2663, 2010

WL 8269063 (Gear); or stated otherwise, by simply the "greater

weight of evidence." Kroger Co./United Industrial Workers, 2012

WL 2620614 (Simeri).

However other arbitrators have focused on a burden-shifting

concept, where in our case the burden would shift from the Union

to the Employer after the Union, "presents sufficient evidence

to justify a finding in its favor on the issue." (Elkouri, p. 8-

103-4, citing County of Monterey, Cal. 93 LA 64 (Riker, 1989);

Vons, 121 LA 741 (Gentile, 2005)).

Other arbitrators have held that,

"...resolution of the grievance turns more on a careful

evaluation of the facts than on fine distinctions regarding

burdens of proof and burdens of going forward."

Fred Weber Inc./Teamsters Local 682, 2006 WL 6823265 (Suardi)

As this arbitrator has mentioned before and will do so

again, what gives this arbitrator a unique tasking is the

parties ' desire and stipulation to have this arbitrator decide

the matter without witness testimony. Witnessing live testimony

is typically where credibility can best be examined, and

"careful evaluation" more easily accomplished.

Here such distinction must be made based on the written

word alone, and as noted by the Employer the proper burden of

proof is the standard of preponderance of the evidence. With the

Fred Weber language in mind, the Union will have that initial

burden; and if it meets that burden, it will shift to Employer

to rebut that showing.

However, it is important to note that the burden of a

preponderance of the evidence is a very minimal burden.

Furthermore, as live testimony did not occur, even greater

emphasis than usual will be given to inference and

circumstantial evidence drawn from the written submissions, as

will be discussed further.

Another unique aspect of this arbitration is the reference

to a summary judgment. The Employer notes in its brief, "At the

hearing, the parties agreed to submit the case to the Arbitrator

for his consideration upon the exchange of affidavits and

Memoranda of Law, similar to a Summary Judgment Motion." (SB-2)

The Union, after reading into the record the parties ' desire to

have the arbitrator consider the case, "...similar to a Summary

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Judgment Motion," (T-4) noted in their brief that, "At the

hearing the parties conferred and agreed to submit the matter to

Arbitrator Little pursuant to an exchange of affidavits and

written closing argument." (UB-2)

It is obvious that the parties ' intent as expressed at the

hearing, in their exhibits, written statements and briefs, is

that this arbitrator rule after examining the substance of this

arbitration, rather than literally decide a labor arbitration

grievance strictly as a neutral would hear a summary judgment

motion.

However, keeping in mind the general nature of a summary

judgment motion helps to reinforce for this arbitration the

concept of sifting burdens and what the Union has to initially

establish,

"A motion for summary judgment may be granted when there is

no genuine issue as to any material fact and the moving

party is entitled to a judgment as a matter of law. A

material fact is one that affects the outcome of the

litigation. When a defendant moves for summary judgment, it

bears the initial burden of showing the absence of any

issue of material fact. If a defendant makes that initial

showing, then the burden shifts to the plaintiff to

establish that there is a genuine issue for the trier of

fact."

Millson v. City of Lynden, 298 P. 3d 141 (Wash. App. Div. 1

2013)

Stated in Washington State appellate decision terms, in our

case the Union must establish the validity of a material fact

that affects the outcome of the case. If they do so, then the

burden shifts to the Employer.

Contract Interpretation

Essentially both parties argue that the pertinent language

in their CBA is clear and unambiguous and supports their

position. The Union further argues that the MOU at the

conclusion of the negotiation and a letter from the mediator

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after the negotiations over the ending of the touring watches,

both also support their position.

For purposes of establishing their interpretation of the

CBA, the Union argues that the language in Rule 8.01, "For all

practical purposes, eight (8) consecutive hours shall constitute

one (1) work day," and the sentence, "If schedules include

offsetting eight (8) hour shifts, the WSF agrees to pay, no less

than eight (8) hours pay for working the short shift for all

employees on a single dispatch," establish the principle of the

eight hour day.

The Union also argues that, "The parties did not stipulate

in the language of Rule 8.01 that the eight hour day would be

treated as [seven] hour[s] of work with one hour of guarantee

time, with the hour of guarantee time not counting toward the 80

hour threshold as asserted by the State." (UB-10-11)

To support their position regarding the language of the

CBA, the Employer argues that ''....nowhere in Rule 8.01 of the CBA

is there language which relates in any way to the manner in

which overtime for work over 80 hours in a pay period shall be

calculated for relief employees," (S-7) After noting the example

in Rule 9.01 referring to the word "worked" in the phrase

"Employee has worked ...," the Employer argues that "....nowhere in

Rule 9.01 is there language which supports that [the

Union 's]argument. In fact, Rule 9.01 supports the State's

position that MM&P relief employees are to be paid overtime

based on the hours actually worked." (SB-7-8)

As to the MOU, both parties essentially point to the same

language which reads, "If schedules include offsetting eight

hour shifts, the WSF agrees to pay, no less than eight hours pay

for working the short shift for all employees on a single day

dispatch." (U-4/S-19) (SB-6-7;UB-5-6)

As to the mediator' s letter, neither party focuses on any

specific language in her letter. The Union argues that the MOU

"codified the mediation agreement as outlined by Arbitrator Ford

in her closing letter after settlement." (UB-6)

The Union argument based on language interpretation

essentially rests on the Rule 8.01 phrases concerning the

principle of an eight hour day, and the agreement to pay no less

than eight hours of pay for working the short shift on a single

day dispatch.

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The key phrase is, "WSF agrees to pay, no less than eight

hours pay for working the short shift.... ."

In the context of qualifying for the overtime threshold,

the phrase 's plain meaning, without considering extrinsic

evidence, infers that the short shift qualifies for eight hours

credit; first, because the focus is on the shift, not the number

of hours, and second, because there is no mention of guaranteed

time. For example as essentially pointed out by the Union, the

phrase is not, "WSF agrees to pay, no less than seven hours

worked and one hour of guaranteed pay for a total of 8 hours of

pay ....." A reasonable inference is that the language means that

the WSF will consider all hours of the short shift as working

hours, because the pay of eight hours is not for the hours but

for the shift, and the non-working hour term or terms (for

example "guarantee pay") are not used-- thus by inference a

short shift is worth eight hours both for pay and for other

entitlements.

Focusing on Washington State appellate decisions, the Union

is quite correct in citing basic interpretation language from

decisions such as Dice v. City of Montesano, 131 Wn. App. 675,

128 P. 3d 1253 (2006),where the court noted:

In construing a written contract, the basic principles

require that (1) the intent of the parties controls; (2)

the court ascertains the intent from reading the

contract...as a whole; and (3) a court will not read an

ambiguity into a contract that is otherwise clear and

unambiguous. " Mayer v. Pierce County Med. Bureau, 80 Wash.

App. 416, 420, 909 P. 2d 1323 (1995)

Furthermore, in general such decisions as Tanner Electric

v. Puget Sound, 128 Wn 2d 656, 674, 911 P2d 1301 (1996), cited

by the Union, are helpful in labor grievances, when that court

noted:

"The touchstone of contract interpretation is the parties'

intent. [Citation] In Washington, the intent of the parties

to a particular agreement may be discovered not only from

the actual language of the agreement but also from 'viewing

the contract as a whole, the subject matter and objective

of the contract, all the circumstances surrounding the

making of the contract, the subsequent acts and conduct of

the parties to the contract, and the reasonableness of

respective interpretations advocated by the parties. '

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[Citation] quoting Berg v. Hudesmanr 115 Wash.2d 657, 663,

667, 801 P.2d 222 (1990)."

The controversial Berg decision contains some language

which reflects the general evolution of interpretation decisions

in the labor context,

"....interpretation ...depends on the credibility of extrinsic

evidence or on a choice among reasonable inferences to be

drawn from extrinsic evidence .....Any determination of meaning

or ambiguity should only be made in the light of the

relevant evidence of the situation and relations of the

parties, the subject matter of the transaction, preliminary

negotiations and statements made therein, usages of trade,

and the course of dealing between the parties."

In the labor arbitration context,

"A contract term is said to be ambiguous if it is

susceptible to more than one meaning, that is if

'plausible contention may be made for conflicting

interpretations. ' The well-established majority view

remains that the existence of an ambiguity must be

determined from the 'four corners of the instrument '

without resort to extrinsic evidence of any kind. This

is the 'plain meaning rule,' which states that if the

words are plain and clear, conveying a distinct idea,

there is no occasion to resort to interpretation, and

their meaning is to be derived entirely from the

nature of the language used." (Elkouri, p. 9-8)

Language in one of the seminal labor arbitration decisions,

United Steelworkers v. Warrior & Gulf Navigation Co. 363 U.S.

574 (1960) has been picked up in numerous recent decisions,

"....a collective bargaining agreement is more than a

contract; it is a generalized code to govern a myriad of

cases which the draftsmen cannot wholly anticipate ....The

collective agreement covers the whole employment

relationship. It calls into being a new common law the

common law of a particular industry or of a particular

plant ..."

Spirit Airlines Inc/ALPA, 2008 WL 8578940 (Nolan).

As noted in the Spirit Airlines decision, "collective

bargain agreements should be interpreted in light of practices

as well as specific words."

18

Viewed in the context of the issue of qualification for the

overtime threshold, the language in both 8.01 and 9.01, the MOU

and the mediator 's letter, while susceptible of two plausible

interpretations, and thus hardly "plain and clear," and in

traditional terms ambiguous, if viewed with "careful evaluation"

can validly be read to support the Union 's position for three

reasons:

First, the language does support the idea that an eight

hour day is established as a principle.

Second, the implication of the key language, "....eight hours

pay for working the short shift ...." is that it's not the working

hours that is the focus, but working the shift.

Third, in that key language there is no mention of a

different type of pay or time crediting, such as guaranteed pay.

Since the Union has addressed several "material facts" with

plausible arguments based on reasonable inferences, the burden

as to this language-focused discussion now rests on the

Employer.

In effect the Employer response is to focus on the term

"working" in the above-noted key phrase, and argue that as the

employee isn't at work during the eighth hour, they are simply

being paid for an hour they weren 't at work, and nothing else--

such as overtime entitlement--applies.

The Employer also emphasizes that the example in Rule 9.01

is of "particular importance," (SB-9)yet that example is unclear.

Again by inference it seems to simply not address the short

shift overtime credit.

The Employer rebuttal also fails in part because it seems

to rely on definitions which are not available. There are no

definitions presented to this arbitrator of key terms such as

"working, 11 "guaranteed time " or "compensable time." Some of the

statements do make note of such terms, such as the mention in

the Saffle affidavit that "Compensable time includes all sick,

vacation, compensatory time and guaranteed time," (Saffle-3)and

in the Slown declaration where he writes that, "....guaranteed time

was the type of pay used whenever any WSF employee was paid for

time not actually worked." (Slown-5) The Employer 's rebuttal is

clearly weakened due to its reliance on apparently undefined

terms.

19

An additional argument the Union can make as to language

interpretation is to address language in the mediator 's letter

of July 3, 2009. While the Union argument that the mediator 's

comment in that letter fully supports the recollection of the

IBU lead negotiator is clearly not substantiated, the phrase she

used as to the WSF 's Conditional Proposal that, "....the WSF will

agree to pay overtime...on a single day shift" is circumstantially

revealing as to what was likely discussed and perhaps also what

might have been the intent as to overtime crediting.

However, although inferences can be made from the language

itself, ultimately we are left with a need to fill in gaps,

because a very valid argument is that the CBA is silent on our

issue.

As the Elkouri treatise notes,

"It frequently happens that there is no language in the

contract applicable to a particular situation that has

arisen." (Elkouri, p. 9-15)

There are various approaches at this point: fill in with a

provision that comports with good faith or "reasonable under the

circumstances," or make an estimation of what the parties would

have intended had they foreseen the situation.

In the arbitration award of Georgia Power Corp./IBEW Local

_§_!, 2011 WL 7790935 (Abrams,Chester,Price), the panel cited the

City of Mattoon decision (cited by the Employer in our case) for

the proposition that clear and unambiguous language must be

given its ordinary meaning. However quoting an earlier decision

of Sara Lee Corp, 129 LA 1 (Holley, 2011) it was noted in

Georgia Power that:

The parties ' intent is generally found in the words

that they used in the collective bargaining agreement.

However, the imperfection of language frequently makes

it impossible to know the parties ' intention without

examining the circumstances and the parties '

objectives. Accordingly, extrinsic evidence found in

the bargaining history and the parties ' administration

of the contract may also be helpful.

With similar pertinent language is the decision of Dept. of

Veteran Affairs, where it is noted:

"...if the language is ambiguous, and arbitrator will (1)

assess bargaining history. (2) examine previous practice by

20

the parties related to the subject, and (3) consider the

traditional rules of contract interpretation. When direct

evidence is not available, circumstantial evidence may be

determinative."

Bargaining History

Having now examined and found valid by inference several

contract interpretation arguments raised by the Union, the next

step is to look at extrinsic evidence from the parties '

bargaining history to see if that evidence supports the Union or

Employer arguments.

Unfortunately, in regard to assessing what the parties '

bargaining history might reveal, due to the absence of

testimony, in both examination and cross examination, this

arbitrator is essentially left with two conflicting written

statements concerning whether the parties discussed the issue at

hand, and if so what they might have implicitly agreed to.

In our situation we have two declarations/affidavits, one

from the then key Union negotiator saying that the issue was

raised in bargaining and one from the Employer counsel, also

present, saying it was never raised in mediation. Furthermore,

there seems to be no mention of the subject that either party

could point to in several exhibits in the form of "Meeting

Minutes." Those Meeting Minutes reflect dialog in some of the

bargaining sessions. In a review of those meeting minutes, some

mention of overtime occurred (see the April 17, 2009 minutes, S-

15, p. 3 of 5) but the issue at hand in this arbitration didn 't

seem to be mentioned.

Both Mr. Conklin and Mr. Slown made what appear to be

credible yet conflicting written statements about whether the

matter was discussed. However, the statement by Mr. Conklin is

more detailed; yet neither statement provides sufficient detail

to establish exactly when the matter may have been discussed,

which side may have made a proposal directly or indirectly

related to the issue, and what happened to any such proposal.

At first examination, our situation appears similar, in

respect to the lack of helpful bargaining history, to the

decision of Lakeland Community College, 39 LAIS 7, (Murphy,

2010) where the arbitrator noted that, "The parties ' bargaining

21

history did not establish an express or implied shared

understanding ....."

The Union argues that,

"The State never took the position that this time would be

considered as anything other than compensable time and time

worked for the purposes of reaching the 80 hour threshold ....

Mr. Slown echoes Mr. Conklin 's memory of the negotiations.

IBU and the Union bargained to maintain the payroll

practices regarding the treatment of the seven hour day as

eight hours worked and, in exchange, IBU gave up the right

to automatically receive one hour of overtime on the nine

hour day, agreeing instead, to the 80 hour threshold. (UB-6-

7; Conklin-2-4)

While this Union argument is not conclusive, it does

bolster their argument based on language. In effect the Union

can effectively argue by inference that when the Employer

conceded on the payment for the short shift all reasonably

related issues would flow from that concession, unless expressly

omitted.

While we cannot be sure that the issue of relief officers

overtime entitlements on a single day dispatch was discussed or

even mentioned, or whether terms such as "working" or "guarantee

time" were even discussed within a common framework of

understanding, we are left with many instances where the issue

of overtime entitlement is at least discussed outside the

context of the seven hour single day dispatch.

Overtime entitlement is mentioned in the MOU dated

September 3, 2009 in regard to IBU; in the mediator' s letter of

July 3, 2009, where she mentions both parties 'proposals

apparently left on the table; extensively in both Rule 8.01 and

9.01, and at least somewhat noted in the Minutes of Meetings. As

noted in the Saffle affidavit,

"The State is only choosing to disallow the use of

Guaranteed Time on the 7 hour day; in all other instances

of Guaranteed Time the State is using the calculation

towards the 80 hour threshold for Overtime. Due to USCG and

MMP contract rules, an employee is entitled to Guaranteed

Time and as such the employer recognizes that Guaranteed

Time in the calculation of overtime." (Saffle-3)

22

While it would have been helpful to this arbitrator to have

testimony explain this statement and provide definitions, we are

once again left with having to examine by inference.

An inference can be drawn that more likely than not the

issue of overtime entitlement in some form was at least an

implicit conversation as to all shifts, an inference which

favors the Union arguments.

What is noted in the Department of Veteran Affairs

arbitration seems very pertinent here,

"When direct evidence is not available, circumstantial

evidence may be determinative."

The question remains whether these examples of

circumstantial inference have any valid support in any possible

past practice.

Past Practice

The Union argues that,

"...for at least two years, the State also honored the

parties 'Agreement and counted all hours of compensation as

eight hours toward the contractual eight hour threshold for

overtime. In 2011, however, the State unilaterally altered

the Agreement and counted only seven of the eight hours

towards the overtime threshold. The State 's practice was

not the agreed upon practice ...."(UB-1)

They also argue that,

"There is no dispute that the State had historically

counted those eight hours in the overtime threshold for IBU

members, and that no changes were made in the agreement to

modify that practice or benefit." (UB-6; Conklin-3-4)

In addition they argue that,

"It is uncontroverted that the parties ' longstanding

practice has been to count all compensable hours, including

vacation, sick, compensatory time and guaranteed time as

time worked." (UB-16)

23

The Employer argues that the subject never came up in the

mediation sessions, and if it had the management perspective

would have been to,

"...pay seven hours of straight time and one hour of

guarantee time. I say this because guarantee time was the

type of pay used whenever any WSF employee was paid for

time not actually worked." (SB-5)

As noted in the Gospel Truth Pictures arbitration,

"....if a contract is silent and a practice [granting a

benefit] has arisen....most arbitrators would conclude that

such a benefit, continued over a reasonable period of time,

has become part of the working conditions and may not be

unilaterally discontinued."

In our situation it appears that the Employer did credit at

least some relief officers with the eighth hour on a single

shift for overtime purposes from the time of the negotiations in

September of 2009 at least until the issuance of the Quick

Notice in March of 2010. The Saffle affidavit adequately

explains why the Quick Notice (U-7) cannot be taken as proof of

an agreed interpretation of the overtime crediting. (S-3-4)

However, following the guidelines factors written by

Richard Mittenthal in "Past Practice and the Administration of

Collective Bargaining Agreements," 59 Mich. L. Rev. 1017 (1961),

it appears to this arbitrator that, the Union has not fully met

its burden to establish a binding past practice because:

First, no proof was offered that the practice was clear and

consistent.

Second, the duration is unclear.

Third, the pattern of the practice was not acceptable.

Fourth, there was no mutual acknowledgement of the pattern

by the parties.

However, the Union has shown, primarily by way of the

affidavits of Tim Saffle and Greg Faust, that there was a

substantial period when the Employer credited the overtime on

the short shift for relief officers.

An issue raised by both parties was that unintended

consequences would occur if the other parties ' interpretation

applies. In the decision of Independent School District

24

2168/Minnesota Ed. Assoc., 1997 WL 34824924 (Remington),

unintended consequences were found to occur if one side' s

interpretation applied.

This arbitrator finds that while neither party conclusively

established that the adverse unintended consequences of the

other parties ' interpretation were a problem to a significant

degree, the Union did show credible examples of impact. The only

statement in the affidavits and the declarations addressing the

issue is the detail in the Saffle affidavit which does point to

the potential with the Employer 's interpretation of "double

dipping," and other results, "...outside of all terms of the

agreement." (Saffle-5-6)

Conclusion

The Union has established, without adequate rebuttal,

sufficient inferences and circumstantial evidence. Viewed within

this unique arbitration 's need for a "careful evaluation" in the

context of a preponderance of the evidence standard of proof,

and within the limits of this arbitration 's stipulations, the

Union has established several material facts and thus the

validity of their grievance, for the following reasons:

First, as to contract interpretation, the key CBA and MOU

language by inference focuses on the shift not the hours, and

thus supports the idea that the WSF is crediting eight hours for

a short shift for all employees on a single day dispatch, not

for a particular number of hours worked, supporting the Union

argument that such credit applies to the overtime threshold.

Second, also as to contract interpretation, that key CBA

and MOU language does not use the terms "guaranteed" hours or

other qualifying language, also supporting the Union argument.

Third, as to bargaining history, the mediator 's concluding

letter 's language supports by inference the idea that overtime

was extensively discussed, pointing to the credibility of the

Conklin affidavit and thus argument of the Union.

Fourth, also focusing on bargaining history, the Employer 's

offer that resulted in the settlement, implicitly, and by

inference, more likely than not contained all interrelated

aspects, unless they were excluded, also favoring the Union

perspective.

25

Fifth, while not raising to the level of a binding past

practice, the Union has shown that the Employer paid relief

officers as the Union argued it assumed from the MOU, for at

least several months, supporting the credibility of their

arguments.

Sixth, while both parties note unreasonable and unintended

impacts if their interpretation is not followed, the Union

showed credible examples ranging from impacts on employees to

adverse impacts on the Employer.

Seventh, the Employer 's counter argument to virtually all

Union arguments is that the issue wasn 't discussed; however that

argument fails to be detailed and corroborated to the extent of

the Union 's arguments concerning language, bargaining history

and a limited past practice, thus do not supply adequate

rebuttal.

Decision

The answer to the question is yes. The State violated Rules

8.01 and 9.01 with regards to Relief Deck Officers overtime

entitlements when on a single-day dispatch.

Award and Remedy

As to Relief Deck Officers, the Employer will count all

eight hours of a single dispatch to the short shift as hours

worked; and the Employer will recalculate and repay, without

interest, all Relief Deck Workers any overtime owed since

September 3, 2009 as a result of this award.

The arbitrator will retain jurisdiction for sixty days from

the date of this award for the purpose of addressing matters

dealing with either the remedy or the stipulations in this

arbitration.

As specified in U-2/S-1, 22.03 E. 1 the expenses and fees

of this arbitrator shall be shared equally by the parties.

Dated this of June 2013

26

E. Little